In re Fischer

United States Bankruptcy Appellate Panel of the Eighth Circuit

November 18, 2013

In re Jeffrey A. FISCHER, also known as Jeffrey Allen Fischer, also known as Fischer Farms; Melanie J. Fischer, also known as Melanie Jean Fischer, also known as Fischer Farms, Debtors.v.Great Western Bank, as successor-in-interest to TierOne Bank, Creditor-Appellee. Jeffrey A. Fischer; Melanie J. Fischer, Debtors-Appellants

Submitted: Oct. 17, 2013.

Page 347

[Copyrighted Material Omitted]

Page 348

John Adam Lentz, Lincoln, NE, for appellant.

Shawn P. Dontigney of Lincoln, NE, for appellee.

Before FEDERMAN, Chief Judge, KRESSEL and NAIL, Bankruptcy Judges.

KRESSEL, Bankruptcy Judge.

The debtors, Jeffrey A. Fischer and Melanie J. Fischer, filed a motion requesting findings of contempt against Great Western Bank, a creditor. The bankruptcy court [1] denied the motion. For the reasons that follow, we affirm.

BACKGROUND

The Fischers are family farmers. In 2005 they obtained a loan from TierOne Bank, appellee Great Western Bank's predecessor-in-interest, for the financing of farm operations and the purchase of machinery. As a result, the bank received a perfected security interest in the Fischers' crops, farm products and livestock.

On January 21, 2008, the Fischers filed a Chapter 12 bankruptcy petition. On October 24, 2008, their plan was confirmed. Pursuant to their confirmed plan the Fischers were required to pay all real estate taxes assessed against their property, including delinquent taxes. The Fischers failed to make these payments as required by the plan. Concerned about their collateral, on September 16, 2010, the bank filed a motion to compel the Fischers to pay delinquent real estate taxes.

On November 17, 2010, the parties entered into a stipulation resolving the motion to compel payment of delinquent property taxes. The stipulation called for the Fischers to liquidate their cattle and distribute the proceeds in a specified manner. The Fischers would then file affidavits to attest that a sale had been conducted and report where the proceeds went. If the Fischers fulfilled their obligations, then the bank was to release its security interest in the cattle and the present and future crops. Specifically, the stipulation provided, in part:

Subsequent to the Cattle sale and distribution of the proceeds from such sale in accordance with Paragraph 3 hereof and upon Debtors' providing the Bank with affidavits, in a form acceptable to the Bank.... Bank shall cause to be filed with the Nebraska Secretary of State's Office an Amended UCC Financing Statement and Effective Financing Statement, releasing the Bank's security interest in the Cattle, and in the Debtors' then present and future crops.

The stipulation was approved by the bankruptcy court in a text order on November 18, 2010. The order ...

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